the duties had not been paid. (8) So, too, as we have already seen, (t) the defaulting party to an agreement to convey land has been, in England, made to pay the attorneys' and brokers' bills for which the plaintiff had merely become liable. So in Louisiana, the sureties in a sequestration bond have been adjudged to pay the counsel fees for which the plaintiff in the original suit was only liable. (u)

Other analogous decisions have been made, which we shall have occasion to consider when we come to the subject of principal and surety; (v) but it appears to me, that the principle that actual loss should be sustained, cannot be much farther relaxed without effacing the line which separates equitable from legal relief. As a general rule, the latter awards damages for injury actually done; anticipation and prevention belong to equity.

We have thus far spoken of express contracts made by the parties; we have still to speak of the agreements which, in the absence of any express stipulation, the law implies from a given state of facts. Where property has been transferred, or services rendered by one party to another, the law implies a promise to pay what the thing or the property is worth. The party then recovers, to use technical language, on a quantum meruit or a quantum valebat; and the measure of damages be- [231] comes a question of evidence as to the value of the property or services. Nor can this rule be varied, except by express agreement. Thus, if a father, whose infant daughter was employed by a manufacturing company at a considerable distance from his residence, forbade them to employ her any longer, and gave them notice that if they did so he should demand a given sum for her time and labor, it was held in an action of assumpsit against the company, that the notice was unavailing to fix the measure of compensation, and that he could only recover what her services were reasonably worth. (w)

(s) Wolfe v. Howard Ins. Co., 1 Sandford's Sup. Ct. Rep., 124. (t) Ante, 109.

(u) Jones v. Doles, 3 La. Ann R., 538. (v) Vide post. But the rule being settled that the plaintiff can only recover for actual loss, nice questions often present themselves as to the nature of the evidence requisite to establish his loss,whether the proof must be definite and absolute, so as to amount to mathemati

cal certainty, or whether the tribunal should be satisfied with an approximative conviction. This subject we shall examine when we come to treat of evidence. In the mean time, I shall refer the reader to the sagacious observations of Mr. Justice Story, in Rogers v. Mechanics' Insurance Co., 1 Story, 609.

(w) Adams v. Woonsocket Co., 11 Met.,

327.

The common-law remedies for the violation of contracts are furnished by the actions of assumpsit, debt, and covenant, according to the form of the agreement, whether sealed or unsealed, and to the character of the demand, whether for sums certain, or for an undetermined amount. A line of division more satisfactory, however, than that resulting from the forms of actions may be derived from the character of the agreement itself, as to the liquidation of the damages. There is a large class of cases where the parties, either by direct language or by the use of the technical form of the bond and penalty, undertake to fix the amount of remuneration, or at least to determine a limit which it shall not exceed. This class of contracts we shall consider after we have examined those where the damages are entirely at large, the parties not having fixed the compensation for a breach, and where the burthen of this duty is thrown entirely upon the court. While adhering, however, as far as possible to this division, founded on the nature of the contract, it is impossible altogether to disregard the character of the proceeding in which the question is presented; for, as has been already noticed, and as we shall have frequent occasion to see, the same claim may be presented in very different forms, and the measure of relief will vary with the action made use of.

Of the action of account it would be superfluous to take any extensive notice here. "It is laid down in divers cases," says

Mr. Sayer, "that no damages are recoverable in it."(x) [232] But on this point there is much conflict in the old books; and inasmuch as the proceeding in its original shape has become almost if not entirely obsolete, it is believed, in this country, it is not necessary to pursue the inquiry. (y)

The great action of assumpsit, although of comparatively recent origin, is of very different importance; (2) and under this head we shall have occasion first to consider the rule of damages

(x) Sayer, ch. 9, 39. Bro. Dam., Pl. 136, Pl. 166. Dal., 18, Pl. 12. 1 Rol. Abr., 571, Pl. 17.

(y) In New York, by the Revised Statutes, vol. 2, 385 and 118, an effort was made by simplifying the practice in this action to re-introduce it, in the hope, perhaps, that it might to some extent supersede the expensive and dilatory remedy in equity; but the attempt did not succeed.

(z) The action of assumpsit was first held right in Slade's case, 44 Eliz., 4 Co., 92 b; previous to which the action of debt was used. "The action of assump sit was established in Slade's case," said Sir Jas. Mansfield, Ch. J., in Max v. Roberts, 5 Bos. & Pul., 454. See, also, Lord Loughborough's opinion, in Rudder v. Price, 1 H. Bl., 547.

in relation to bills and notes, insurance, sales of chattels, principal and surety, and the rights and liabilities of common carriers.

The action of covenant differs materially from that of assumpsit, in its requisition of a seal to the contract; but as this variation in the form of the agreement has no influence on the measure of relief, we shall be able to consider the rules of damages in that form of action, conjointly with assumpsit, reserving for separate examination the consideration of a very limited class of cases, which are presented in that form of proceeding only.

First, then, of negotiable paper. (a)

(a) An interesting and valuable work has recently been published at New Orleans, entitled The Civil Law of Spain and Mexico, by Gustavus Schmidt. It contains a brief but useful sketch of the gradual growth of the Spanish jurispruprudence, and its introduction on this continent, and the modifications it has here undergone. Among the texts in regard to damages on breach of contract, are the following:

"Art. 437. When one of the parties, who has fulfilled his part of a contract, desires to rescind it, on account of the non-execution on the part of the other, he is entitled to indemnity for the injury he has sustained by such non-execution.

"Art. 438. The obligor in such a case is bound to pay indemnity, unless he

prove that the execution of the contract was rendered impossible by some unforeseen vis major.

"Art. 439. The indemnity is fixed by the creditor himself, with the approbation of the judge who taxes the same."

This last provision curiously accords with the original rule of the Roman law, in which, as we have seen, the measure of damages was fixed by the plaintiff himself: in infinitum jurare potuit. Ante, 23. I confess, until I discovered this analogy, I thought there must be some misunderstanding of the civil law, and that no jurisprudence could ever have tolerated such an enormity. Mr. Schmidt's work will well repay perusal and examination. His introduction bears marks of study and careful reflection,

CHAPTER VIII.

THE MEASURE OF DAMAGES IN ACTIONS UPON PROMISSORY NOTES AND BILLS OF EXCHANGE.

On Promissory Notes the legal rate of interest fixes the measure of damages. Questions when the currency is altered-when the contract is made in one country and the suit is brought in another-when the amount of recovery depends on the consideration paid or received. Rule of Damages on Bills of Exchange-Reexchange fixed in the United States generally by Statute,

THE subject of negotiable paper is so amply discussed in the various treatises devoted to this particular branch of the law, that it will only be necessary for us in this place to take a brief view of the general principles regulating the compensation awarded for the breach of contracts of this class.

In actions brought on promises to pay a liquidated sum of money, as on promissory notes or bills, where no question arises as to the currency or rate of exchange, the rule of damages is a fixed and arbitrary one. It is identical with the rate of legal interest. The actual damages may be much greater; the nonperformance of the obligation may have occasioned the greatest distress, nay, even extreme positive loss; it may have produced actual insolvency. These remote results the law, however, does not investigate. It takes the rate of interest as the measure of damages; and so, says Pothier, "as the different damages which may result from the failure to perform this kind of obligation vary infinitely, and as it is as difficult to foresee as to excuse them, it has been found necessary to regulate them as by a species of penalty, and fix them at a precise sum.” (b)

(b) Traité des Oblig., Part I., Ch. II., Art. 3, 170. "Comme les differens dommages et interêts qui peuvent resulter du retard de l'accomplissement de cette espèce d'obligation varient à l'infini, et

qu'il est aussi difficile de les prevoir que de les justifier, il a été nécessaire de les regler, comme par une espèce de forfait, à quelque chose de fixe."

With this, the general language of the modern civil [234] law accords. The damages resulting from the non-performance of contracts to pay money, are limited to the infliction of interest. "Interest," says Domat, (c) " is the name applied to the compensation which the law gives to the creditor who is entitled to recover a sum of money from his debtor in default." So, too, the Roman law: In bona fidei contractibus usuræ ex mora debentur. (d)

These principles, equally recognized by our system, are embodied in the French Code by a positive provision, (e) the correctness of which is thus supported and expounded by one of the ablest commentators on that law :

"It is certain that the non-payment of money when due may cause, and often actually causes, the creditor loss much beyond the legal interest on the sum. For want of the funds on the receipt of which his calculations are made, he may have been compelled to borrow, himself, and to submit to the exactions of the usurer. He may have been prosecuted, in a manner calculated to destroy his credit. He may have been ejected from his property; have become bankrupt; his house may have gone to ruin for want of repair. He may have lost highly advantageous bargains.

But how are we to distribute these losses according to their real cause, and fix on those which should be imputed to the party in default? How is any equitable valuation to be made of them? Add to this that the non-payment of money is the most common of all cases which give rise to damages, and we shall perceive that the peace of society would be harassed by this infinite multitude of settlements, and the litigation that would result from them.

The law prevents this by declaring that the damages shall never exceed legal interest from the day that payment becomes due; and this, which is a species of forfeiture, may often be advantageous to the creditor.

Whatever may be the damage that he has suffered by the delay in receiving his funds, whether the debtor was animated by malicious or even fraudulent motives, the creditor cannot, it is true, demand any other compensation than legal interest on his demand. But on the other hand, he is not required to prove the damages that the delay may have caused. And this provision, which fixes the measure of damages for non-payment of money [235] at legal interest, is founded on a principle of equity.

(c) Liv. III., Tit. V., § 1.

(d) L. 32, § 2, Ff. De usur.; propter moram. L. 17, § 3, in fine eodem.

(e) Art. 1153. Dans les obligations qui se bornent au paiement d'une certaine somme, les dommages et intérêts resultant du retard dans l'execution ne consistent jamais que dans la condamnation aux intérêts fixés par la loi, sauf les

regles particulières au commerce et au cautionnement.

Ces dommages et intérêts sont dus, sans que le créancier soit tenu de justifier d'aucune perte.

Il ne sont dus que du jour de la demande, excepté dans les cas où la loi les fait courir de plein droit. Code C., § 1153.